Who do I name?

JenniferB14 (Colorado)
Posts: 148

Posted:

I am planning to take the HOA to small claims court.. the issue for suit is irrelevant to the following question: I want to file in the county in which we reside, however the management company who is listed by the CO Secretary of State as the place of business is in a different county, thus precludes me from filing in our county. The other option is to name the board members (which in many ways is appropriate as it is their refusal to address the issue which has created the impasse). The board members have addresses here in our county (obviously) thus we can go to court within our county. Then there is the registered agent... they are the legal firm which represents us. So must I name and serve each defendant as an officer of the association and service the registered agent or the individual officer themselves. The county clerks don't have an answer. I am in need of an injunction, not financial relief... so I need the board to do their duty. Any help is appreciated.

GenoS (Florida)
Posts: 4,276

Posted:

You say the issue is irrelevant, but is it? Do small claims courts in Colorado have jurisdiction over the dispute? I know California small claims courts do have some jurisdiction over condo/hoa disputes, and Florida small claims courts have almost none. Are you sure about Colorado?

JenniferB14 (Colorado)
Posts: 148

Posted:

Colorado small claims does have jurisdiction for the enforcement of covenants, which is what this is pertaining to.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Who do you name? Yourself and your neighbors. Suing your HOA is suing yourself and your neighbors. The HOA board has D&O insurance and are not to be sued individually. Your Management company is a paid contractor to the HOA. They don't make the rules. You and your neighbors do that. Something called "Majority rules" and the ability to vote to change officers or rules. The power is in you and your neighbors hands to make change.

If you really need to sue, then be aware they can counter-sue you. You also may have to pay their legal expenses if your case is found irrelevant. The judge decides who pays legal expenses. The HOA usually does have to hire a lawyer to represent them in court. That lawyer for the HOA is NOT your lawyer. It's the HOA's.

So it's best if you determine how badly and how much damage you have before going down that spiral. Is it because they did not follow a rule? Is it because they did damage to your home? Do you believe it's selective enforcement?

Remember above all the court system can ONLY make you "Whole". So whatever your suing for is just going to get your money/damages back. It's not a punitive process or a profitable one.

Former HOA President

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JenniferB14 on 11/21/2017 3:28 PM
Colorado small claims does have jurisdiction for the enforcement of covenants, which is what this is pertaining to.

Carry on, then. I wish my state had this.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JenniferB14 on 11/21/2017 3:00 PM
I am planning to take the HOA to small claims court.. the issue for suit is irrelevant to the following question: I want to file in the county in which we reside, however the management company who is listed by the CO Secretary of State as the place of business is in a different county, thus precludes me from filing in our county. The other option is to name the board members (which in many ways is appropriate as it is their refusal to address the issue which has created the impasse). The board members have addresses here in our county (obviously) thus we can go to court within our county. Then there is the registered agent... they are the legal firm which represents us. So must I name and serve each defendant as an officer of the association and service the registered agent or the individual officer themselves. The county clerks don't have an answer. I am in need of an injunction, not financial relief... so I need the board to do their duty. Any help is appreciated.

From https://www.courts.state.co.us/Self_Help/smallclaims/ :

"If the case involves is to enforce a restrictive covenant or arises from a security deposit dispute, you may file your case in the county where the real property is located."

The above web site has additional instructions about filing in small claims in Colorado. You can also put your city into the following search engine, and a self-help center location will come up: https://www.courts.state.co.us/Self_Help/center.cfm

I would simply name the corporation as a defendant. Then you only have to serve the lawsuit papers on a single entity.

JenniferB14 (Colorado)
Posts: 148

Posted:

I would agree that naming the corporation as the defendant is appropriate (and the board members can either decide to appear or send our attorney who has already been making a fortune off our HOA this year)

The problem as I mentioned is the corporation does not have its own address, but the place of business is that of the property management company which is in another county, thus I can't file in this county. Does that make sense? It is a strange situation... I really would rather sue the entity but I also don't want to deal with Denver County Courts.

I know full well when you sue the association you sue yourself.. I know full well about counter claims. I don't owe any money (yet), and I have followed the rules required of me per our covenants. I have been dealing with this since June with no resolution. The board keeps trying to turn a blind eye essentially because the approval of my reasonable improvement request would put them in the line of fire with a group of residents which they happen to side with. Again though... I don't want to get in to the specifics as I am pursuing... I just need to nail down how to serve and how to name when I have the management company as the third party which throws a wrench in things.

JenniferB14 (Colorado)
Posts: 148

Posted:

I would agree that naming the corporation as the defendant is appropriate (and the board members can either decide to appear or send our attorney who has already been making a fortune off our HOA this year)

The problem as I mentioned is the corporation does not have its own address, but the place of business is that of the property management company which is in another county, thus I can't file in this county. Does that make sense? It is a strange situation... I really would rather sue the entity but I also don't want to deal with Denver County Courts.

I know full well when you sue the association you sue yourself.. I know full well about counter claims. I don't owe any money (yet), and I have followed the rules required of me per our covenants. I have been dealing with this since June with no resolution. The board keeps trying to turn a blind eye essentially because the approval of my reasonable improvement request would put them in the line of fire with a group of residents which they happen to side with. Again though... I don't want to get in to the specifics as I am pursuing... I just need to nail down how to serve and how to name when I have the management company as the third party which throws a wrench in things.

JenniferB14 (Colorado)
Posts: 148

Posted:

Forgot to mention... the courts state in regards to restrictive covenants the case may be filed where the "Real Property is Located"... the county will not allow for it with the use of the Property management company as the place of business being in Denver versus Douglas County. The Real Property is located in Douglas County. Do you see the dilemma? If the HOA had a place of business registered with the Secretary of State that was in our county then all would be well, but the place of business is in Denver County... thus not where the real property is located.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Most likely your HOA's real address is NOT the management company's as you believe. Do they have a clubhouse? It is most likely the address of the clubhouse. The HOA had to have an address to make a deposit on their water or electric bills. In our case it's in a member's name who allowed that. However, it maybe your HOA used their address.

Did you get denied approval for something or no response to your request? The HOA has a right to deny your request if they don't feel the request is something that will benefit ALL the members. The HOA isn't in the business of keeping Home values. They are in the business of keeping the HOA ATTRACTIVE to potential buyers. So is your request one that will modify appearance or add additional value to your home?

Without knowing much details, we may not be able to give the best advice. It's most likely you need to discuss this with your lawyer who should know best how to file.

Former HOA President

JenniferB14 (Colorado)
Posts: 148

Posted:

No clubhouse, no central meeting place. 246 homes in a rural community and that's all. The addressed registered with the Secretary of State is the property management company which as I have stated is outside of our county.

Again the details are not related so much to the issue of filing and who to name. I know the limitations of the HOA and what their rights are... however they have to follow the rules just as much as the owners do... by covenant if the ARC does not respond in 30 days then the improvement is considered approved. They still won't give me an approval letter, and we are undergoing a vote which ends Nov 30 which may result in an amendment which could potentially affect my improvement... even though technically it's approved per covenant. I want my approval letter and they are refusing.

JenniferB14 (Colorado)
Posts: 148

Posted:

No clubhouse, no central meeting place. 246 homes in a rural community and that's all. The addressed registered with the Secretary of State is the property management company which as I have stated is outside of our county.

Again the details are not related so much to the issue of filing and who to name. I know the limitations of the HOA and what their rights are... however they have to follow the rules just as much as the owners do... by covenant if the ARC does not respond in 30 days then the improvement is considered approved. They still won't give me an approval letter, and we are undergoing a vote which ends Nov 30 which may result in an amendment which could potentially affect my improvement... even though technically it's approved per covenant. I want my approval letter and they are refusing.

MichelleK5 (New York)
Posts: 161

Posted:

Hmm..
To the experts here: Can she use the Presidents address to file? It's the physical address of the head of the board who's being sued.

I did that in NY when I sued my electrician. He had a PO box that the clerk said they couldn't use. So I used his home address and that was perfectly fine.

RichardP13 (California)
Posts: 3,868

Posted:

To Melissa, you can sue Board members individuals and their D&O Insurance didn't cover them. Speaking for California, most, if not all HOA addresses are the agent's address, most likely the MC, if they are managed.

In California, if you file a case against the HOA or the individual Board members, the court is the closest to the defendants.

JenniferB14 (Colorado)
Posts: 148

Posted:

RichardP13... when you say closest to the defendants, do you mean within the county who has jurisdiction?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The key word here is "Improvement". A HOA you maintain and/or obey. It sounds like what you want the neighbors don't. So they are trying to vote and change the rules to exclude what you want. If they win, then if you do the improvement, the HOA can force you to remove it. It should not be "grandfathered in".

I would file in the county you live in. That address is the one should base your county on. Your a member of the HOA. Which means your an owner. Where your ownership should determine where you file. If it's wrong, then the court will tell you.

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JenniferB14 on 11/21/2017 5:37 PM
RichardP13... when you say closest to the defendants, do you mean within the county who has jurisdiction?

In California, we put the zip code of the defendant and they pick the closest small claims courts. I just filed a case today against my old boss.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Michelle,

I expect that your Association is incorporated (most are, but check to be sure).

You would file suit against the Association, likely naming each Director as well.
You would serve the suit to the registered agent of the Corporation.

The State Corporation Commission should have an address for the registered agent.

Others have posted where your would file (based on statute).

You are dealing with courts and the legal process.
Things are overturned on technicalities.
If you are not sure, you should consult an attorney.

JanetB2 (Colorado)
Posts: 4,219

Posted:

If you want an answer to a LEGAL question you need to ask your attorney ... because we are not attorneys. Potentially you would name the HOA with their Registered Agent as the place to submit legal documents ... after all that is why any entity would have a Registered Agent.

Did you send your ARC request "Certified Return Receipt"??? If not then how will you provide proof that there was no response in 30 days if you file any such court case??? When was the improvement done ... was it more than one year ago or was it less??? Was the improvement some type of permanent type construction???

LOL ... You want answers to questions where you have not provided enough information to properly answer.